One step forward

Tuesday

Mar 1, 2011 at 6:00 AMMar 1, 2011 at 2:05 PM

By George Barnes TELEGRAM & GAZETTE STAFF

Darrel Hopkins, 66, is elated to hear that the U.S. Justice Department will no longer defend the federal Defense of Marriage Act. But he does not see that the action changes much for him and his husband, Tom.

“There is still a long way to go,” he said. “The courts have a lot to do and Congress has a lot to do.”

Mr. Hopkins said he and Tom and all other married same-sex couples are still discriminated against. And as long as the federal act is in place, gay people in this country will not be able to enjoy rights guaranteed under the Constitution.

The Defense of Marriage Act defines marriage as being between a man and a woman.

In Massachusetts, that definition is no longer accepted. Living here, the couple enjoys all rights as citizens except those excluded by the federal government.

In 2004, Massachusetts became the first state to allow same-sex couples to marry. The state Supreme Judicial Court ruled the year before that it was unconstitutional to discriminate against same-sex couples. The court ordered cities and towns to begin issuing marriage licenses in May 2004.

In September of that year, Darrel, 66, and Tom Hopkins, 59, married after spending 20 unmarried years together.

The change in Massachusetts did not translate to the federal level. Mr. Hopkins said that in tax filings and eligibility for federal benefits, they continue to face discrimination on the federal level.

Darrel Hopkins is a 20-year veteran of the Army who retired in 1982. He later worked for the Internal Revenue Service before retiring in 2007.

As a veteran, he is allowed to be buried in a federal or state veterans’ cemetery, including Arlington National Cemetery. The spouses of veterans are also allowed to be buried in the veterans’ cemeteries — except for same-sex spouses.

After learning that Tom could not be buried with him in a national cemetery, Darrel applied for permission for them to be buried together in the Massachusetts Veterans Cemetery in Winchendon. The state Department of Veterans Services approved their application, but they were told by state Attorney General Martha Coakley that the approval could cause problems for the state.

The U.S. Department of Veterans Affairs prohibits the burial of same-sex spouses in state and national veterans’ cemeteries. The department made it clear it could require the state to reimburse federal funding received for state cemeteries if a same-sex spouse of a veteran were buried in either the cemetery in Winchendon or a similar cemetery in Agawam.

The request by Tom and Darrel left the state in a position where it would either violate the couple’s rights under state law or risk losing more than $7 million given by the federal government to build the Winchendon cemetery, and possibly another $12 million given for the Agawam Cemetery.

But the state did not back down on its approval of the burial

Because of the Hopkins case and other effects on the state and its residents, the attorney general’s office filed a lawsuit seeking to have Section 3 of the Defense of Marriage Act ruled invalid. In July, 2010, U.S. District Court Judge Joseph L. Tauro ruled in federal court in Boston that the federal definition of marriage was invalid because it violated the well-established authority of the state under the 10th Amendment of the Constitution to define marriage.

The ruling has since been appealed to the U.S. 1st Circuit Court of Appeals, but the decision by the Justice Department to no longer defend the Defense of Marriage Act casts doubt over whether that appeal will be heard. The court is waiting on a decision by the federal government on whether it will continue to appeal the case.

A hearing had been scheduled for today to consider an appeal of Judge Tauro’s ruling, but that was before the announcement by the Justice Department.

The ruling to allow the men the right to be buried together in the Winchendon Cemetery was at the heart of the lawsuit over the definition of marriage, but they were not a party to the suit.

“This is not my case,” Darrel said. “The state chose not to discriminate against us. They approved the burial and that remains approved.”

Mr. Hopkins said he sees the decision by the Obama administration not to defend the act as a step forward. He said burial rights are not the only way the Defense of Marriage Act discriminates against him.

“There are 1,138 ways,” he said.

Mr. Hopkins said there are several cases pending challenging the act, but it is unclear what will occur with those cases.

For now, the Westminster couple can only watch and wait and hope the entire act is struck down.

“It could still be dragged out for a long time,” Mr. Hopkins said.

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